That’s the title of my new essay, which the Yale Law Journal Forum has published in draft form. Here’s the abstract. Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how […]
On March 2, 2017, the Center for the Study of the Administrative State is hosting a public policy conference on the Hill entitled The Time for Regulatory Reform in Congress. The Center’s director Neomi Rao and I have organized this event, and it should be a lot of fun. It’s free, with food, so register here. […]
It is time to rethink legal and popular notions of immigration sovereignty. In the 19th Century, the Supreme Court depicted immigration as a threat to national sovereignty. It did so to support its conclusion that the political branches (Congress and the President) had extra-constitutional power over certain aspects of immigration law. In explaining why the […]
During the 2016 election, Donald Trump became the first major Presidential candidate in recent history to withhold his tax returns, citing ongoing IRS audits. After taking office, President Trump has said that he will continue to keep his tax returns secret. He believes that only the media, and not the voters, care about them. In a recent […]
In response to a scathing report by Kaiser Health News, Senator Charles Grassley has announced an inquiry into the exorbitant prices for orphan drugs. Now seems like a good time to highlight my series, published at The Incidental Economist, on how to think straight about orphan drugs: Background on orphan drugs and the Orphan Drug […]
Anti-circumvention technologies were most probably not high on President Trump’s mind when he withdrew the United States as a signatory to the Trans-Pacific Partnership (TPP) last month. The TPP, as with a number of other multilateral and bilateral treaties to which the United States is a party, includes prohibitions on the circumvention of “effective technological […]
This guest post comes from Ian Samuel, a Climenko Fellow and Lecturer on Law at Harvard Law School. His areas of scholarly interest focus on cyberlaw, especially as it intersects with criminal law, security, and intellectual property. He has clerked for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and for […]
Over at The Surly Subgroup blog, Leandra Lederman just wrapped up hosting a terrific mini-symposium entitled The Future of Tax Administration and Enforcement. This online symposium grew out of an in-person discussion group at the 2017 Annual Meeting of the American Association of Law Schools last month. Professor Lederman has some concluding thoughts here, and my […]
My colleague Peter Shane and I are hosting the Second Annual Administrative Law New Scholarship Roundtable here at The Ohio State University on June 27-28, 2017. We just issued the call for papers (really, call for abstracts), with a deadline of March 17th. Last year’s inaugural roundtable at Michigan State was a terrific event. I’ve cross-posted […]
Given the tumult of the opening weeks of the Trump Administration, the public is forgiven for not realizing that the Administration is woefully understaffed. But even in the flurry of personnel announcements from first the transition team and now the Administration, on the Federal Reserve—perhaps the most powerful of governmental agencies—we have had near radio silence. Of […]
A judge on the Court of Federal Claims has entered a $214 million judgment against the United States in favor of Moda Health, an Oregon insurer. Moda sued to recover money owed to it under the risk corridor program, a three-year program that was supposed to protect insurers from excessive losses on the exchanges. In […]
It is a busy time for administrative law — just count the number of posts of late. But the D.C. Circuit has been quiet. This week, we have just two cases, and one of them is about cheating on a test. Really. Let’s start with the “cheating” case: Chenari v. George Washington University. Here, Judge […]
Agencies have long known that the formal promulgation of rules is a regimented process, involving codification of requirements and consideration of public comments. The natural curb on agency evasion of this onerous process is the potential threat of lawsuits under the APA, but EO 13771 generates another, possibly more stringent curb. The Jan. 30, […]
Despite recent Republican warnings that the Senate will work 24/7 to overcome Democratic delay tactics, Republicans are unlikely to execute that strategy. Floor time is the most valuable resource that Senate Republicans have and they have a number of pressing issues. Senate Republicans only have limited time to use the Congressional Review Act and its […]
In a previous post on Notice & Comment, I argued that the Obama administration leveraged a judicial settlement with Volkswagen to circumvent the Congress’s power of the purse. In this post, I argue that the same settlement also infringes on President Trump’s Article II authority. Here’s the backstory. In 2011, President Obama announced his administration’s […]